June 2021

Dentist Does Not Disclose Error Committed by Previously Treating Dentist; Both Are Sued for Malpractice

Mario Catalano, DDS, MAGD

Introduction

Perfect clinical performance is a noble, but unachievable, goal in dentistry — errors can and will occur during the course of patient care. Typically, when a suboptimal outcome occurs, the treating dentist will recognize it and should take appropriate remedial steps.

Occasionally, however, the treating dentist is not aware of the error or, worse yet, does not inform the patient of it. If the patient comes under the care of a new (subsequent treating) dentist, that provider might become aware of the error. If so, the subsequent treating dentist will likely find that this situation puts him/her in a difficult legal and ethical position, as illustrated in this interesting case from the Midwest.

CASE DISCUSSION

Dr. O, who was 2 years out of dental school, purchased a practice in a major Midwest city and began treating the existing patient population. One weekend, one of the practice’s patients contacted her at home. The patient’s adult daughter was visiting from out of town. Three days earlier, the daughter had received root canal therapy on tooth number 7 from Dr. T, her regular dentist. The day after her treatment, the daughter had returned to Dr. T’s practice because of significant postoperative pain.

Unfortunately, Dr. T was not present in the office. The office staff assured the patient that some postoperative pain was normal and she should be fine, but they did not contact Dr. T to advise him of the patient’s discomfort. Based on the office staff’s reassurance, the daughter traveled to her mother’s home as previously planned. By Postoperative Day 3, the patient (daughter) was significantly swollen and in much greater pain. Hence, the mother’s call to Dr. O.

Dr. O met the patient and her mother at the office, examined the patient, and took an X-ray. She identified a large periapical lesion at tooth number 7. The X-ray also showed root canal sealer extruding past the apex and what appeared to be a separated portion of an endodontic file.

Dr. O performed an incision and drainage, which significantly reduced the swelling, and instructed the patient to follow up with Dr. T. However, Dr. O did not inform the patient of the endodontic file segment because she did not want to “throw Dr. T under the bus.” After the patient returned to Dr. T, he treated her with antibiotics, which resulted in abatement of her symptoms. Dr. T never disclosed the file segment to the patient.

The patient continued to have periodic flare-ups with the tooth over the next several years, which Dr. T treated with antibiotics. Eventually, the patient sought a second opinion at a local dental school. There, the file segment was quickly identified and ultimately removed by means of an apicoectomy. Once this was accomplished, the patient made a complete, uneventful recovery.

The patient sued both Dr. T and Dr. O for failing to disclose the endodontic file separation to her. After a discovery process lasting over a year, the patient dropped her action against Dr. O and received a financial award in the midrange from Dr. T.

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Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

The subject of error disclosure has received considerable attention in risk management literature in recent years. The generally accepted approach — with a few narrow exceptions — is that healthcare providers have an ethical responsibility to inform patients when errors occur, regardless of whether the error results in patient harm.¹

In this case, Dr. T did not disclose the separation of the endodontic file segment for one of two reasons: (1) he was not aware of it, or (2) he was aware of it and chose to not disclose it to the patient. If the former, he could be criticized for not knowing; a simple postoperative X-ray would indicate the retained object. If the latter, he did not fulfill his ethical duty to the patient.

Another problem that occurred in this case was Dr. T’s office staff advising the patient that her postoperative pain was normal. Nonclinical staff should not offer clinical advice, and none of Dr. T’s office staff members were qualified to determine whether the patient’s pain was routine or required intervention. Further, the office staff did not advise the doctor of the patient’s complaint so that he could follow up with her. Many dentists follow up endodontic surgery with a phone call to see how the patient is doing. That also did not occur in this case; if it had, Dr. T may have had the opportunity to intervene in a timely manner.

As mentioned above, when Dr. O realized that a file segment had been retained, she found herself in a difficult position. On one hand, she did not know all of the circumstances surrounding Dr. T’s original treatment; thus, she did not want to portray his care as inappropriate. On the other hand, this retained file segment was information that the patient needed to know and had a right to know.

Fortunately, there is a practical and effective way to deal with similar conundrums. If possible, the subsequent treating dentist should contact the original dentist directly to ask about the circumstances of the original treatment. At that time, the subsequent dentist can inform the original dentist of his/her findings and offer the original dentist the opportunity to disclose the error to the patient. If the original dentist declines disclosing the error, then the subsequent dentist should fulfill his/her ethical responsibility and inform the patient of the findings.

This case contains a certain element of irony; although the two dentists were sued for malpractice for not disclosing the separated file segment, the actual basis for the case (the breaking of the endodontic file) was not necessarily malpractice. File breakage during endodontic treatment is generally viewed as not completely avoidable even with the utmost care; thus, it is viewed as a known risk of treatment. Discussing this possible risk (as well as others) with patients as part of the informed consent process can help facilitate disclosure if a suboptimal outcome occurs.²

SUMMARY SUGGESTIONS

The following suggestions may be helpful in dealing with errors or unanticipated outcomes that occur in the course of providing dental care:

• When errors occur, ensure prompt, complete, and truthful disclosure of the circumstances to the patient. With limited exceptions, full disclosure is the best way to handle the situation both strategically and ethically.
• Gather sufficient information so that you can provide at least a basic explanation of what happened, how it affects the patient’s situation, and how you propose to fix the problem. Ultimately, more than one disclosure conversation might be necessary as more information becomes available.
• If you are unsure of, or uncomfortable with, how to conduct the disclosure conversation, seek advice from an expert (such as your MedPro Senior Patient Safety and Risk Consultant) prior to the conversation.
• As part of the disclosure process, document the error or unanticipated outcome in the patient's health record, including an objective summary of the pertinent clinical facts surrounding the event. Document the disclosure conversation(s) as well, including what information is communicated to the patient, his/her understanding of the information, and any next steps in patient care.
• If, after the disclosure, the patient is uncomfortable continuing with you as his/her dentist, do not take personal offense. Be gracious and offer to assist in creating a plan for transitioning the patient’s care. Be prepared for questions regarding finances.
• Although careful review and self-examination are a good idea, do not allow the error to distract you from the care you are providing to other patients. Distraction and loss of confidence can negatively affect your performance going forward. For more information, see MedPro’s Risk Q&A: Managing Stress After an Adverse Patient Outcome

CONCLUSION

Dentists provide complicated, highly technical care to their patients on a daily basis and with a level of efficiency, efficacy, and safety that is truly remarkable. Unfortunately, not every case will have a perfect result. Dealing with errors and unanticipated outcomes honestly and promptly is an ethical and patient-centered approach to care that may prevent further harm and reduce potential liability exposure.

QUESTION

How should a dentist handle a situation in which a colleague is acting in a way that appears unethical?